Ryan A.

Stuart
Assistant Municipal Attorney
Municipal Attorney’s Office
P.O. Box 196650
Anchorage, Alaska 99519-6650
Phone: 907-343-4545
Fax: 907-343-4550
Email: uslit@muni.org

Attorney for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

THE DOWNTOWN SOUP KITCHEN, d/b/a, )

DOWNTOWN HOPE CENTER, )
)
Plaintiff, )
)
vs. )
)
MUNICIPALITY OF ANCHORAGE, )
ANCHORAGE EQUAL RIGHTS )
COMMISSION, and PAMELA BASLER, )
Individually and in her Official Capacity as )
the Executive Director of the Anchorage )
Equal Rights Commission, )
)
Defendants. )
) Case No. 3:18-cv-00190-SLG

MOTION FOR FEDERAL ABSTENTION

Defendants (collectively “Municipality”) move the Court for an order dismissing

the Complaint under the federal abstention doctrine, or in the alternative, to stay these

proceedings pending local and state court proceedings. The facts in support of this motion

are taken from Plaintiff’s Complaint.

Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 1 of 9

 I. INTRODUCTION AND SUMMARY OF ARGUMENT

This case involves the investigation by the Anchorage Equal Rights Commission

(AERC) into a transgender woman’s allegation of denial of services by The Downtown

Soup Kitchen d/b/a Downtown Hope Center. Plaintiff challenges the validity of provisions

of Title 5 of the Anchorage Municipal Code, both facially and as-applied, under the United

States Constitution and Alaska Constitution.

The AERC investigation of the discrimination complaint against the Hope Center is

open and ongoing, and AERC has rendered no decision nor undertaken any enforcement

action against the Hope Center. AERC’s determination regarding the discrimination

complaint, if decided in the Hope Center’s favor, would render Plaintiff’s claims in this

action moot, or at least substantially change the nature of its alleged claims before the court.

In addition, the Hope Center has a right to appeal from the AERC proceeding directly to

the Alaska Superior Court for consideration of challenges to AERC’s jurisdiction as well

as determination of state and federal constitutional challenges to Title 5. Again,

adjudication of these claims by the Alaska Superior Court, if decided in the Hope Center’s

favor, would substantially alter Plaintiff’s claims before the federal court and render some

or all of the claims moot.

The Younger 1 doctrine of federal abstention requires the court to abstain from

further proceedings in this action in order to avoid interference with pending state

adjudication of sensitive issues of municipal and state law regarding public

1
Younger v. Harris, 401 U.S. 37 (1971).
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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 2 of 9
accommodations and sex- and gender identity-based discrimination. Abstention is

appropriate pursuant to the Younger doctrine because: (1) there is an ongoing local

adjudicative proceeding, with an attendant right of appeal to state court, that (2) implicates

important state interests, and which (3) provides the Hope Center with an adequate

opportunity to raise its federal claims.

II. FACTS

A. The Anchorage Equal Rights Commission (AERC) is a Municipal

Commission.

According to the Complaint:

104. The Commission was established by Section 17.02 of the Anchorage

Municipal Charter. AMC § 5.10.020.

105. It is an administrative agency within the Municipality of Anchorage.

106. Section 17.02 of the Anchorage Municipal Charter states that “[t]he assembly
by ordinance shall establish an equal rights commission and prescribe its
duties. The commission shall appoint its principal executive officer with the
approval of the mayor. The principal executive officer shall serve at the
pleasure of the commission.”

107. The Commission is authorized to hire an Executive Director, subject to the

approval of the mayor, who serves at the pleasure of the Commission. AMC
§ 5.10.040.

B. The AERC Interprets Municipal Code for Compliance with Municipal

Equal Rights Ordinances.

According to the Complaint:

111. Anchorage’s public accommodation law is found in AMC, Title 5, which

was amended in 2015 to include “gender identity” among the grounds of
discrimination prohibited by the title. AMC § 5.20.050.

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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 3 of 9
 C. AERC Proceedings are Pending with No Decision or Enforcement
Action.

According to the Complaint:

14. The individual who sought access in January 2018 nonetheless filed a
complaint with the Anchorage Equal Rights Commission (“Commission”),
accusing the Hope Center of discriminating on the basis of sex and gender
identity, despite clear evidence of the nondiscriminatory basis for that denial.

15. Although the Hope Center clearly did not violate the code, the Commission’s
Executive Director did not dismiss the complaint early on but continues to
harass the Center through a now nearly 6 month “investigation.” 2

D. The Interpretation and Application of the Term “Public

Accommodation” is Uniquely Municipal.

Issues in the AERC proceedings are twofold: (1) whether there is substantial

evidence of discrimination by the Hope Center, which is a factual issue for AERC, and (2)

whether the Hope Center is a public accommodation under municipal code such that the

exceptions for homeless shelters found in two other code provisions do not apply. The two

code sections that contain exceptions for homeless shelters are (1) the Fair Housing Act at

AMC 5.25.030A, and (2) AMC 5.20.020 – Unlawful practices in the sale, rental or use of

real property (which directly incorporates the exceptions described in the Fair Housing

Act). However, the municipal code provision concerning public accommodations found at

AMC 5.20.050 does not contain an exception for homeless shelters. The still-pending

AERC complaint was filed under the public accommodation code. See, Exhibit B hereto

(AERC Complaint No. 18-041).

2
For clarification and background, the second complaint AERC filed against the Hope Center and its counsel has
been settled and administratively closed. See, Complaint ¶ 153 (reference to second AERC complaint); Exhibit A
(Closure document regarding AERC Complaint No. 18-167).

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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 4 of 9
 According to the Complaint:

179. Section 5.20.020(A) specifically incorporates the exception for homeless

shelters found at 5.25.030(A)(9).

181. Along with the specific exclusion from the ordinance, the Hope Center is
also not a place of public accommodation.

The Plaintiff argues that the Hope Center is not a public accommodation under Municipal

Code. Complaint, ¶¶ 181-186. Ultimately, whether the Hope Center is a public

accommodation falls under AERC’s mandate to investigate allegations and apply the

municipal code, with rights of appeal to the state superior court. The definition of “public

accommodation” under current Anchorage Municipal Code is distinct from state and

federal definitions of public accommodations and represents a unique legal question that

has not been interpreted by the courts.

III. ARGUMENT

A. Abstention is appropriate pursuant to the Younger doctrine.

Beginning with its decision in Younger v. Harris, 401 U.S. 37 (1971), the Supreme

Court has limited the ability of federal courts to enjoin or otherwise interfere with ongoing

state judicial proceedings. Subsequent decisions such as Middlesex County Ethics

Commission v. Garden State Bar Association, 457 U.S. 423 (1982), have further expanded

and clarified this body of law, often referred to as the Younger doctrine of abstention.

Federal courts, including the Ninth Circuit, have adopted a three-part test derived from the

Middlesex decision for determining whether abstention is appropriate under Younger. See

e.g., M&A Gabaee v. Community Redevelopment Agency of the City of Los Angeles,

419 F.3d 1036 (9th Cir. 2005). Under this test, abstention is generally appropriate where

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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 5 of 9
(1) there are ongoing state adjudicative proceedings, which (2) implicate important state

interests, and which (3) provide an adequate opportunity to raise the plaintiff’s federal

claims. Id. at 1039. As discussed herein, the matter presently before the Court meets all

three prongs of the Middlesex test and abstention under Younger is appropriate.

i. The AERC investigation is an ongoing state adjudicative proceeding.

The AERC investigation is a civil enforcement proceeding, similar to the state bar

disciplinary proceedings at issue in Middlesex, and therefore among the specific categories

of proceedings for which Younger abstention is appropriate. Sprint Commc’ns, Inc. v.

Jacobs, 571 U.S. 69 (2013). The Hope Center concedes the underlying AERC proceeding

is still pending and no decision has been rendered in the matter. See, Complaint ¶¶ 14, 15.

If a “state-initiated proceeding is ongoing,” and the other Middlesex factors are

satisfied, “then a federal court action that would enjoin the proceeding, or have the practical

effect of doing so, would interfere in a way that Younger disapproves.” Gilbertson v.

Albright, 381 F.3d 965, 978 (9th Cir. 2004).

ii. Important state interests are at issue in the pending AERC

investigation.

Interpretation and application of the term “public accommodation” under the

Anchorage Municipal Code is a uniquely municipal question which implicates important

state interests in eliminating sex and gender identity-based discrimination. The state’s

interests in this matter closely resemble the state interests in Ohio Civil Rights Commission

v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986). In that case, a sectarian school was

the respondent in a state administrative proceeding alleging gender-based employment

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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 6 of 9
discrimination and unsuccessfully sought a federal injunction against the pending

proceeding on First Amendment grounds. Id. In holding that Younger prevented the district

court from entertaining suits challenging the validity of administrative enforcement

proceedings on those grounds, the Supreme Court emphasized the state’s important interest

in rooting out employment discrimination. Id. Here, the state interest in eliminating sex-

and gender identity-based discrimination in public accommodations is equally important

as the state interests at issue in Ohio Civil Rights Commission.

iii. The Hope Center has an adequate opportunity raise its federal claims
before the AERC and/or on appeal to the Alaska Superior Court.

The final prong of the Middlesex test requires that the federal court plaintiff have a

meaningful opportunity to present their federal claims in the underlying state proceedings.

Notably, even where it is uncertain whether a federal court plaintiff could adequately raise

their federal claims in state administrative proceedings, the Supreme Court has held that

the third Middlesex factor is satisfied if the federal claims could be raised in a state court

appeal of any state administrative orders. Ohio Civil Rights Comm’n, 477 U.S. at 619. The

Ninth Circuit has held that opportunity for judicial review is inadequate under the Younger

abstention doctrine “only when state procedural law bars presentation of the federal

claims.” Hirsh v. Justices of Supreme Court of State of Cal., 67 F.3d 708, 713 (9th Cir.

1995) (emphasis in original).

Here, the Hope Center’s constitutional challenges can be adequately addressed

before the AERC. See e.g., Middlesex, 457 U.S. at 435-436 (Rejecting argument that

federal court plaintiff lacked opportunity to raise constitutional challenges before local

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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 7 of 9
ethics committee because there was no indication the committee “would have refused to

consider a claim that the rules which they were enforcing violated federal constitutional

guarantees.”); AMC 5.10.010 (“It is the express intent of this title to guarantee fair and

equal treatment under law to all people of the municipality, consistent with federal and

state constitutional freedoms and laws, including freedom of expression, freedom of

association and the free exercise of religion.”) (emphasis supplied); AMC 5.60.010.B (“In

making a determination, the executive director may consider analogous guidelines and

precedents of the federal Equal Employment Opportunity Commission, the Department of

Housing and Urban Development, and state and local enforcement agencies, as well as

applicable federal and state judicial precedent.”) (emphasis supplied).

Furthermore, the Hope Center enjoys an explicit right of appeal under Title 5 of the

Anchorage Municipal Code to obtain judicial review by the Alaska Superior Court of any

orders issued by the AERC, as set forth by AMC 5.80.030.A:

Judicial review and enforcement.

A. A complainant, or person against whom a complaint is filed, or other
person aggrieved by an order of the commission, may obtain judicial
review of the order in accordance with AS 44.62.56 - 44.62.570.

Thus, pursuant to Ohio Civil Rights Commission, even if Hope Center’s constitutional

challenges could not be addressed by the AERC, the Hope Center clearly still has an

“adequate opportunity” under the Younger doctrine to raise those challenges on appeal to

the Alaska Superior Court.

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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 8 of 9
 IV. CONCLUSION

Abstention by the court is required by the Younger doctrine in this matter because:

(1) there is an ongoing local adjudicative proceeding, with an attendant right of appeal to

state court, that (2) implicates important state interests, and which (3) provides the Hope

Center with an adequate opportunity to raise its federal claims. Dismissal of the Hope

Center’s complaint is the appropriate relief. Potrero Hills Landfill, Inc. v. County of

Solano, 657 F.3d 876, 889 (9th Cir. 2011); San Remo Hotel v. City and Cnty. of San

Francisco, 145 F.3d 1095, 1103 (9th Cir. 1998). In the alternative, the Municipality

respectfully requests the court stay all further proceedings in this matter pending a final

determination in the ongoing municipal and state adjudicative proceedings.

Respectfully submitted this 21st day of November, 2018.

REBECCA A. WINDT PEARSON

MUNICIPAL ATTORNEY

By: /s/ Ryan A. Stuart

Assistant Municipal Attorney
Alaska Bar No. 0706036
CERTIFICATE OF SERVICE
I certify that on 11/21/2018, a copy of the
foregoing document was served on the following:

Jonathan A. Scruggs
Ryan J. Tucker
Sonja Redmond
Kevin G. Clarkson
David Cortman
Katherine Anderson

by electronic means through the ECF system as

indicated on the Notice of Electronic Filing.

/s/ Amber Cummings

Legal Secretary

-9-
Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 9 of 9
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Jiayor J)afl Sullivan
Rights Con1mission

Pamela Basler, Executive Director

Anchorage Equal Rights Commission
632 W. 6th Avenue, Suite I 10
Anchorage, AK 99501

John B. Thorsness
Clapp, Peterson, Tiemessen, Thorsness & Johnson, LLC
711 I-! Street, Suite 620
Anchorage, AK 99501-3442

Re: Pamela Basler, Executive Director, AERC et. al. v. Downtown Hope Center and/or
Brena Bell & Clarkson
AERC Complaint No.: 18-167

CLOSURE

PURSUANT to Anchorage Municipal Code, Title 5, and the powers of the Commission
delegated to the Executive Director, the above-captioned case is closed for the following reason:

This complaint is administratively closed pursuant to Anchorage Municipal Code 5.60.020.A.

/O - /'J -;Loi f" :£:?4'-7-7-u:,4"',,.. /._: ~(£?,_a_.,,_,..__1.~~..~......--·-·

DATE "'p AMELA T. BASLER
EXECUTIVE DlRECTOR

G:\Equa! Rights\l"ilneMatters\Pamela Basler, Executive Director, AERC ct al. v. Do\vntO\VJ1 l·I.ope Center andrn. .or
Brena Bell & Clarkso\Closure Final.docx
MOA Exhibit A
Case 3:18-cv-00190-SLG Document 43-1 Filed 11/21/18 Page 1Page
of 1 1 of 1
Complaint Number: l 8-04 l Filing Date: 21112018

NAME: Phone:(907) 444-8568

Address: l 00 West J3th Ave State: AK 9950!

*•*********************************************************************•*************************************¥
ALLEGE THAT THE FOLLOWING NAMED: Public Accommodation

NAME: Downtown Hope Center Phone:

Mailing Address: 240 East 3rd Ave City, State: Anchorage, Alaska Zip: 99517
*************************************************************************************.************************
If this is an employment complaint, does this employer have more than fifteen (i 5) employees? 0Yes 0 No f8J NIA
****•*********************************************************************************************************
DISCRIMINATED AGAINST ME ON THE BASIS OF MY:

0Racc 0 Religion IZJ S;;x 0 Color 0 National Origin 0 Disability 0 Sexual Orientation 0 Age 0 rvlarital Status IZJ Gender Identity 0 Rclaliation
··················································································*···························
DATE OF MOST RECENT OR CONTINUING DISCRIMINATION: January 29, 20 l 8
**********************************************************************************************************~***
STATEMENT OF DISC!UMINATION:

l allege I have been discriminated against in violation of the following statute prohibiting unlawful discriminatory practices in places of public
accommodation, Anchorage Municipal Code§ 5.20.050.

Respondent operates a shelter in Anchorage, Alaska. On two occasions, most recently on January 29, 2018, Respondent refused me access to
its sheller because of my sex and gender identity.

r allege the following discriminatory actions: Denial of services/ Sex, Gender Identity
!. l am female and transgender thus l belong to a protected class.
::?. On January 29, 2018, and one other occasion I was denied full and equal enjoyment of Respondent's services, goods or facilities.
3. Members outside of my protected class were not treated in the same or similar manner.

J WILL advise the Commission if J change my address or telephone number(s); and l will cooperate fully in the processing of my
discrimination complaint

I SWEAR OR AFFIRM I have read the above complaint and it is true to the best of my knowledge, information and belief.

G:\Equal Rights\TimeMatters\ v. Downtown Hope Center\Complaint.docx

MOA
Case 3:18-cv-00190-SLG Document 43-2 Filed 11/21/18 Page 1 ofExhibit
1 B
Page 1 of 1
Ryan A. Stuart
Assistant Municipal Attorney
Municipal Attorney’s Office
P.O. Box 196650
Anchorage, Alaska 99519-6650
Phone: 907-343-4545
Fax: 907-343-4550
Email: uslit@muni.org

Attorney for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

THE DOWNTOWN SOUP KITCHEN, d/b/a, )

DOWNTOWN HOPE CENTER, )
)
Plaintiff, )
)
vs. )
)
MUNICIPALITY OF ANCHORAGE, )
ANCHORAGE EQUAL RIGHTS )
COMMISSION, and PAMELA BASLER, )
Individually and in her Official Capacity as )
the Executive Director of the Anchorage )
Equal Rights Commission, )
)
Defendants. )
) Case No. 3:18-cv-00190-SLG

[PROPOSED] ORDER GRANTING MOTION FOR FEDERAL ABSTENTION

The Court having reviewed Defendants’ Motion for Federal Abstention, and any

opposition and reply thereto;

IT IS HEREBY ORDERED that Defendants’ Motion for Federal Abstention is

GRANTED.

Case 3:18-cv-00190-SLG Document 43-3 Filed 11/21/18 Page 1 of 2

DATED:____________________ ___________________________
The Honorable Sharon L. Gleason
United States District Court Judge

CERTIFICATE OF SERVICE
I certify that on 11/21/2018, a copy of the
foregoing document was served on the following:

Jonathan A. Scruggs
Ryan J. Tucker
Sonja Redmond
Kevin G. Clarkson
David Cortman
Katherine Anderson

by electronic means through the ECF system as

indicated on the Notice of Electronic Filing.

/s/ Amber Cummings

Legal Secretary

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Case 3:18-cv-00190-SLG Document 43-3 Filed 11/21/18 Page 2 of 2